CAAF will hear oral argument in the Air Force case of United States v. Barker, No. 17-0551/AF (CAAFlog case page), on Tuesday, February 27, 2018, at 9:30 a.m. Two granted issues question the Air Force CCA’s finding of error in the admission of two out of three victim-impact statements offered by the prosecution, but no prejudice to the appellant’s rights:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Airman First Class (E-3) Barker pleaded guilty to possession and viewing child pornography. He was not, however, charged with or convicted of any offense related to production or distribution of such materials; a point repeatedly emphasized in his brief. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit.

On appeal, the Air Force CCA considered the letters under two different rules applicable to such matters: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. The CCA then found that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF’s review focuses on the January statement that the CCA found admissible.

Barker’s brief begins with a threshold question, asserting that “the statements . . . do not meet the threshold requirements for unsworn victim impact statements under R.C.M. 1001A.” App. Br. at 7. The CCA rejected this argument, citing Paroline v. United States, 134 S. Ct. 1710, 1716-17 (2014), for the principle that “child pornography is a continuing crime and a child depicted in the images is victimized each time the images are downloaded and viewed.” Barker, 76 M.J. at 753. Barker’s brief to CAAF, however, takes a different approach, focusing on the R.C.M. 1001A(b)(1) definition of a crime victim as someone who has suffered direct physical, emotional or pecuniary harm as a result of the offense:

As drafted, the statements do not talk about any direct harm the affiant(s) suffered because of Appellant’s crimes, as required under R.C.M. 1001A. The statements are broadly drafted to encompass all of the suffering the affiant(s) has experienced throughout her life, the affiant(s) seeking civil restitution, and the distribution of child pornography. JA 114-120.

App. Br. at 9-10. The Air Force Government Appellate Division’s response focuses on Paroline, but also highlights that “a majority of federal circuit courts have also held that children appearing in child pornography suffer direct harm and are victims of those who possess and view images of child pornography.” Gov’t Div. Br. at 17 (citing cases). Barker’s reply brief, however, insists that “the Manual for Courts-Martial imposes limitations on admissible evidence in sentencing proceedings that are greater than those that apply to sentencing in Federal district court,” in part because of the absence of a presentence investigation and report. Reply Br. at 5. See also Fed. R. Crim. Proc. 32.

Barker’s brief then raises more traditional evidentiary concerns, including that:

The letter from the affiant(s) lacked the foundational requirements necessary to be admitted as evidence in aggravation under R.C.M. 1001A. There was no evidence the statement’s affiant(s) is a victim depicted in the child pornography introduced into evidence at Appellant’s court-martial. There is also no way of knowing whether the statements had been altered.

App. Br. at 12. And that:

Page seven of Prosecution Exhibit 8 is dated January 13, 2013, which would have been over 3 years before Appellant’s court-martial. There was no evidence to show the affiant(s) still felt the same way as when she wrote the statement 3 years prior and that she wanted to participate in Appellant’s sentencing hearing. The defense was never given any contact information to contact the affiant(s) or her representative and as a result had no opportunity to rebut any information in Prosecution Exhibit 8 during trial.

App. Br. at 14-15.

The Government Division’s response focuses on the fact that Barker’s defense counsel did not make a specific objection on the basis of authentication:

In this case, defense counsel did not sufficiently preserve an objection for authentication. Defense counsel provided three specific grounds for his objection to the victim impact statements: that the government committed a discovery violation by not providing names and contact information for the letters’ authors, that the statements were not proper under R.C.M. 1001A, and that the evidence failed the balancing test under Mil. R. Evid. 403. When taken out of context, one could argue that certain statements made by defense counsel, such as, “I don’t know who the individuals even are in these statements,” or, “I don’t have any contact information for these individuals,” could sufficiently preserve an authentication objection; however, when taken in the context of the entire argument, it becomes clear that those statements referred solely to the discovery violation instead of to an authentication objection.

Gov’t Div. Br. at 25. To its credit, the Government Division does not assert that this mere failure to object was a waiver (see the #3 Military Justice Story of 2017), but rather it argues that plain error review applies. The CCA, however, found that the defense preserved any error with the objections that were made. The Government Division’s brief also argues that the letters were authenticated by their distinctive characteristics:

One of the examples contained within Mil. R. Evid. 901 on how to satisfy the authentication requirement for an item is with the distinctive characteristics of the item itself. “The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances,” may satisfy the requirement. Mil. R. Evid. 901(b)(4). In Lubich, this Court found that data recovered from a computer was sufficiently authenticated under this rule, among several other reasons, because the computer data contained numerous references to the appellant’s personal computer information. 72 M.J. at 175. Similarly, in this case, the January 2013 victim impact statement contains sufficient information, when combined with the stipulation of fact, for AFCCA to have held that it had been properly authenticated.

Gov’t Div. Br. at 30-31. The defense in Lubich, however, conceded the authenticity of the data at issue, as discussed in my opinion analysis.

The Government Division also argues – albeit in a footnote – that “there is no authentication requirement for a written victim impact statement introduced under R.C.M. 1001A.” Gov’t Div. Br. at 31 n.6. In other words, the trial counsel could produce scribblings on a napkin and the defense would have no basis under the rules to object.

The second granted issue questions whether the improper admission of the statements – whether the two found to be improper by the CCA or all three if CAAF so concludes – was prejudicial or harmless.

Barker’s argument for a finding of prejudice focuses on the human aspect of the case:

The admission of this evidence allowed trial counsel to humanize a victim…a victim that was not even identified to the defense.

The presumption is that military judges will correctly follow the law, which would normally result in no legal error, not that an acknowledged error is harmless. The presumption cannot somehow rectify the error or render it harmless.

App. Br. at 20-21.

The Government Division’s response, however, makes a surprising appeal to common sense:

The military judge did not need these statements to be able to consider the natural consequences for children who have been victims of child pornography: that victims will continue to feel re-victimized as people download and view their images. These common sense assumptions have been affirmed by case law. . .

Gov’t Div. Br. at 35. It will be interesting to see if CAAF asks for more detail about this argument, considering the court was unanimous in its relatively-recent condemnation of a sentencing argument that encouraged members to “think what we know, common sense, ways of the world, about child molesters,” where no actual evidence was admitted to support the argument. United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014) (CAAFlog case page).

3 Responses to “Argument Preview: Reviewing the limits of victim-impact statements, in United States v. Barker”

I had to look up Vicky Series. Reviewing this for individual versus society implications seems like it would be the standard. But if the statements in the NYT story are true, “So far, her client has filed for restitution in more than 200 federal criminal cases across the country, and received more than 50 orders for payment — though not much money has come in because many defendants have little means.” This continuing process would have to end someplace. What would happen if someone wanted to do a search on say, Tracy Lords, just like looking up the NYT article. Then a picture of her underage showed up. Would that mean they could be prosecuted?

All child porn is bad, but there are degrees of badness. And once it’s out there, it’s out there forever. It’s a never ending “trauma,” but really, it has to end somewhere. He didn’t create it, didn’t distribute it, and no one can say he’s responsible for how she felt 5-8 years ago.

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